Malot Family Ltd. v. Mellott Family Trust ( 2020 )

J-A29005-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MALOT FAMILY LIMITED : IN THE SUPERIOR COURT OF
PARTNERSHIP, DORIS MELLOTT, : PENNSYLVANIA
AND LOWELL MELLOTT :
:
:
v. :
:
:
MELLOTT FAMILY TRUST BY : No. 502 MDA 2020
TRUSTEES, HOWARD MELLOTT, :
KARLA MELLOTT, RALPH MELLOTT, :
TRUSTEE, AND DORETTA MELLOTT, :
TRUSTEE :
Appeal from the Judgment Entered March 17, 2020
In the Court of Common Pleas of Fulton County Civil Division at No(s):
2012-00445
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 31, 2020
Appellants, the trustees of the Mellott Family Trust (the “Mellotts”),
appeal from the March 17, 2020 entry of Judgment following a non-jury
verdict against them in this Quiet Title action. After careful review, we affirm
on the basis of the trial court’s well-analyzed and written November 15, 2019
Opinion.
The facts and procedural history are well known to the parties and we
need not restate them in their entirety here. Relevantly, in 2012, Appellees,
the Malot Family Limited Partnership (“MFLP”), filed a Complaint against the
Mellotts asserting claims of Quiet Title and Unjust Enrichment arising from a
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A29005-20
boundary dispute between the parties. The Mellotts timely filed an Answer
and New Matter and a counterclaim for Timber Trespass.
Over the course of the next six years, the parties litigated this dispute,
culminating in a March 2019 bench trial. Following consideration of the
testimony and evidence submitted at trial, and the parties’ post-trial proposed
findings of fact and conclusions of law, the court found in favor of MFLP and
directed that the disputed boundary shall be set as depicted in the 2010 survey
performed by MFLP’s expert Glenn D. Watson. Order, 11/15/20, at ¶ 1. The
court also found in favor of MFLP on the Mellotts’ counterclaim for Timber
Trespass. The court ruled in the Mellotts’ favor on MFLP’s Unjust Enrichment
claim.
The Mellotts filed a timely Post-Trial Motion, which the trial court denied
on February 20, 2020. This appeal followed. The Mellotts complied with the
trial court’s Order to file a Pa.R.A.P. 1925(b) Statement. The trial court filed
a Rule 1925(a) Opinion relying on its February 26, 2014, April 17, 2018, and
November 15, 2019 Opinions.
The Mellots raise the following two issues on appeal:
1. Whether the trial court erred in determining the location of the
western boundary between Mellott[s] and MFLP, where it adopted
the boundary based on monuments mentioned in junior surveys
but not mentioned in MFLP’s deeds, instead of the courses and
distances of the senior survey, which the trial court held was the
legal boundary, thus violating well-established principles
governing the resolution of boundary disputes[?]
2. Whether the trial court erred by (1) precluding Mellott from
proving its title based on the law of the case doctrine, (2) using
the testimony of a surveyor to establish the location of Mellott[s’]
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J-A29005-20
northern boundary line without properly applying judicial
principles to determine the extent of the parties’ remote
predecessor in title, and (3) adopting an unofficial draft as
evidence of title, enlarging its extent to more than 170 acres when
the predecessor’s deed only conveyed titled to 125 acres more or
less[?]
Mellotts’ Brief at 4 (suggested answers omitted).
The Mellotts’ issues challenge findings of the trial court sitting as fact-
finder. When reviewing a trial court’s decision after a non-jury trial, our
standard of review is well-established. “We may reverse the trial court only
if its findings of fact are predicated on an error of law or are unsupported by
competent evidence in the record. As fact finder, the judge has the authority
to weigh the testimony of each party’s witnesses and to decide which are most
credible.” Parker Oil Co. v. Mico Petro and Heating Oil, LLC, 979 A.2d
854, 856 (Pa. Super. 2009) (citation and brackets omitted). The trial judge’s
findings must be given the same weight and effect as a jury verdict and will
not be disturbed on appeal unless they are not supported by competent
evidence in the record. Levitt v. Patrick, 976 A.2d 581, 589 (Pa. Super.
2009). “Furthermore, our standard of review demands that we consider the
evidence in the light most favorable to the verdict winner.” Id. (citation
omitted).
In addition, in reviewing a judgment entered in a quiet title action, this
Court is limited to determining “whether the findings of fact are supported by
competent evidence, whether an error of law has been committed, and
whether there has been a manifest abuse of discretion.” Regions Mortg.,
Inc. v. Muthler, 889 A.2d 39, 41 (Pa. 2005) (citation omitted). This Court
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J-A29005-20
“will not reverse a determination of the trial court in a quiet title action absent
an error of law or capricious disregard of the evidence.” Birdsboro Mun.
Auth. v. Reading Co. and Wilmington & N. R.R., 758 A.2d 222, 225 (Pa.
Super. 2000) (citations and quotation marks omitted).
The crux of the Mellotts’ claims is that the trial court erred in relying
primarily on the testimony and survey of Glenn D. Watson, MFLP’s expert, to
determine the locations of the disputed boundaries of the parcels owned by
the parties. Our review of the record and the relevant law indicates that the
competent evidence supports the trial court’s findings of fact, and that the
trial court did not err as a matter of law. The Honorable Angela R. Krom, who
presided at trial, has authored a comprehensive, thorough, and well-reasoned
Opinion, citing extensively to the record, including the Notes of Testimony,
and to relevant case law in addressing the Mellotts’ challenges. We, therefore,
affirm on the basis of that Opinion. See Trial Ct. Op., 11/15/19, at 27-28, 33
(finding Watson’s testimony pertaining to the location of the “Plessenger
Division Line” credible); 28-32 (rejecting, in part on the basis of the law of the
case doctrine, the Mellotts’ argument that the trial court should rely on
acreage to establish the property lines); and 45 (concluding that Watson’s
“work [was] legally and factually compelling” and that MFLP “demonstrated
prima facie evidence of title” by the requisite “fair preponderance of the
evidence.”).
The parties are instructed to attach a copy of the trial court’s November
15, 2019 Opinion to all future filings.
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J-A29005-20
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2020
-5-
Received 4/7/2020 5:12:01 PM
Circulated
Superior12/17/2020
Court Middle
09:57
District
AM
Filed 4/7/2020 5:12:01 PM Superior Court Middle District
502 MDA 2020
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
OF PENNSYLVANIA -. F'ULTON COUNTY BRANCH
Malot Family Limited Partnership, Civil Action - Law
Plaintiff
V No.2012-445
Howard J. Mellott and Karla J. Mellott,
Ralph D. Mellott and Doretta K. Mellott
Trustees of the Mellott Family Trust ani
John J. Mellott and Marjorie A. Mellott,
Defendants Honorable Angela R. Krom, J.
OPINION AND ORDER OF COURT
f\
,Ñ
'.(J
.:
Before Krom, J.
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
OF PENNSYLVANIA -- FULTON COUNTY BRANCH
Malot Family Limited Partnership, Civil Action - Law
Plaintiff
No.20l2-445
Howard J. Mellott and Karla J. Mellott,
Ralph D. Mellott and Doretta K. Mellotr
Trustees of the Mellott Family Trust ani
John J. Mellott and Marjorie A. Mellott,
Defendants Honorable Angela R. Krom, J
OPINION
Before the Court are the quiet title and unjust enrichment claims of the Malot Family
Limited Partnership ("MFLP") and above-captioned Defendants' (oothe Mellotts"'), counter claim
of timber trespass. After a two-day bench trial and the submission of proposed findings of fact
and conclusions of law the Court finds as follows:
F'ACTIIAI, AND PROCEDIIRAI, RA CKGROUND
On November 14, 2012, MFLP initiated the instant action by Complaint, asserting claims
of quiet title and unjust enrichment stemming from a boundary dispute with the Mellotts. An
Amended Complaint followed on January 18, 2013.r On March 4,2013,the Mellotts filed an
Answer and New Matter, which included a counterclaim of timber trespass.
MFLP filed a Motion for Partial Summary Judgment on September 30,2013. On
October 2,2013, the Mellotts also filed a Motion for Partial Summary Judgment.
By Order and Opinion entered February 26,2014, which is hereby incorporated by
reference, this Court granted in part and denied in part the Motions for Partial Summary
I
The Amended Complaint reiterated the substance of the Complaint but modified the identities of the defendants.
I
Judgment. In resolving the cross-motions, we first delineated Areas A and B2 and Area C3 as
the areas of overlap, i.e.,the areas of the disputed boundaries. Noting thatwhat the boundary is
constitutes a question of law, while where the boundary exists is a question of fact, this Court
held that the First Harris Deed, from which the Mellotts derive their title, had superior title to the
Second Hanis Deed, from which MFLP derives their title. We further held that the boundary in
Area C is the Plessinger Division Line.a Due to latent ambiguities in the First Harris Deed, the
Court observed that the Plessinger Division must be reconstructed; however,where the line
exists on the ground is a factual question the Court could not resolve at the summary judgment
stage. With respect to Areas A and B, this Court concluded, based on the agreement of the
parties, that the boundary must be determined using the Lake Second Survey.
On May 2,2017, the Mellotts filed a subsequent Motion for Partial Summary Judgment,
seeking a definitive ruling on the boundaries in Areas A and B and Area C. In support, the
Mellotts asserted that the net acreage purported to be conveyed by each Harris Deed could be
used to determine the boundary in Area C. In Areas A and B, the Mellotts contended that
physical monumentation corroborated the survey performed by Thomas Shelly of Shelly and
Witter ("Shelly Survey") in June 1998 as depicted on the 2010 survey performed by Glenn
Watson ("Watson") of Dennis E. Black Engineering, Inc. ("DEB"); and that the Shelly & Witter
Survey line should be adopted as the boundary. MFLP disagreed. By Order and Opinion entered
"'AreaAandAreaBofthesubjectreal estatetogetherconsist of a3.gg25acreoverlapalongthewestemboundary
of lands owned by the Mellott Family Trust (Tract 2) and John J. Mellott and the eastern boundary of MFLP Tracts
k and o. Amended Complaint, 't[22, Exhibit 4. Area A and Area B are divided by T-417, known as Mill Road."
February 26,2014 Opinion and Order of Coutt at 3. (Note: Exhibit 4 of the Amended Complaint is the 20 I 0 survey
performed by Glenn Watson and described, supra., as "Watson Survey" and admitted a Plaintiff s Exhibit l.)
'"Area C of the subject real estate consists of a7.7826 acre overlap between the boundary line established by the
Shelly [&Witter] Survey recorded at Fulton County Plat File #166-A and the boundary line established by the
[Watson] Survey. Amended Complaint, nnß,20-22, Exhibit 4." February 26,2014 Opinion and Order of Court at
a
The circumstances of the First Harris Deed, the Second Harris Deed, and the Plessinger Division Line are
discussed at length, supra.
2
April 17,2018, we denied the Mellotts' Motion based on our conclusion that the location of the
boundaries and the method of ascertaining the boundaries were genuine issues of material fact
for trial.
A bench trial was held on the matter on March 21 and22 of 2019. Following trial, the
Court entered an Order directing the parties to file proposed findings of fact and conclusions of
law. Both parties have complied, and the matter is now ripe for disposition.s
FINDINGS OF FACT
I. AREAS OF DISPUTE
1. Area C
Area C is best identified for the purposes of this litigation as encompassing a strip of land
in the northeast corner of the survey performed by Watson. Watson's 2010 survey ("Watson
Survey") was entered into the record as Plaintiff s Exhibit 1. See Transcript of Proceedings of
Bench Trial, March 21,2019 ("T.P. 3l2Ill9") at 8,30; Plaintiff s Exhibit ("P1. Ex.") l. The
property of Howard J. Mellott (a named defendant in this action)6 lies to the south/southwest of
the disputed boundary; MFLP's property is to the north. See Pl. Ex. 1.
The events as gleaned from the ancient deeds, suggest the following largely undisputed
history of conveyance of the property involved in this dispute. In 1865, Mary Divelbiss
("Divelbiss") conveyed a parcel or parcels described as "l25 acres, more or less" to Noah
Mellott ("Noah") and William Vallance ("Vallance"). Transcript of Proceedings of Bench Trial,
t
As Glenn Watson aptly described and the reader will likely readily discern, "This is one of the most confusing
projects in my recent history." Transcript of Proceedings of Bench Trial, March 21,2019 at I14.
o
Two individuals by the name of Howard J. Mellott are referenced in the record. The individual hereinafter refened
to as Howard J. Mellott the younger is a defendant in this action, while the individual referred to herein as Howard J.
MellotttheelderisapredecessorininteresttotheMellottsandisnowdeceased. T.P.3/2lllgatT.lnaddition,at
the risk of appearing inappropriately informal, to avoid unnecessary confusion, we have referred to most individuals
in this Opinion by their first rather than their last name. Many of the individuals involved in this matter have the last
name "Mellott" or "Malot", spelled differently, but pronounced quite the same.
a
J
March 22,2019 ("T.P. 3122119") at 70; Defendants' Exhibit ("Def. Ex.") 9. In 1870, Noah and
Vallance entered into an agreement to divide the parcel between the two of them. T.P. 3122/19 at
70; Def. Ex. 8. The written agreement purported to divide 170 acres-rather than the "125 acres,
more or less" conveyed by Divelbiss-and conveyed I l0 acres,40 perches, plus allowances to
Noah. Id.
Following a series of conveyances, the land held by Noah was obtained by George and
Sallie Hanis. In March of 1917, George and Sallie Harris executed two deeds, referred to
throughout as the First Harris Deed and the Second Harris Deed, respectively. Each deed
conveyed apart of an expanse of property subdivided along the Plessinger Division Line, as
established by Fulton County Surveyor Frank Plessinger. No record of Plessinger's survey exists
today.
The First Harris Deed, dated March26,l9l7, and recorded August 71,1944, conveyed
part of the Harris' land to Howard J. Mellott the elder. The Second Harris Deed, dated March
28, 1917, and recorded July 23, 1932, conveyed the remainder of the property to Grover C.
Mellott.
The First and Second Harris Deeds recite differing desuiptions of the Plessinger Division
Line. The First Harris Deed states the boundary as follows:
North 79 degrees Easf 42 perches to a pine knot, South 84 %East degrees 36
perches to a pine knot in field, North 4 Yz degrees East 38.4 perches to a pine
knot, South 60 % degrees East 32.2 perches to a pine knot, south 71 3/a degrees
East 20 perches to a pine knot, south 75 Y+ degrees East 77.7 perches to a pine
knot.
See Pl. Ex. 9; Def. Ex. 1. In contrast, the Second Harris Deed recites the Plessinger Division
Line as
North 79 degrees East 42 perches to a pine knot, South 84 %East degrees 36
perches to a pine knot in field, North 54 % degrees East 38.4 perches to a pine
4
knot, Sotrth 60 % degrees East 22.2 perches to a pine knot, North 7l3/a degrees
East 20 perches to a pine knot, South 75 % degrees East 77.7 perches to a pine
knot.
See Pl. Ex. I l; Def. Ex.2.7 The recitation in the First Harris Deed fails to close by 430.85
perches, i.e ., 7 ,109 feet.8
As noted above, for reasons fully discussed in our Order and Opinion entered February
26,2014, we found the First Harris Deed superior to the Second Harris Deed and concluded that
resolution of the boundary dispute in Area C requires reconstruction of the Plessinger Division
Line using the calls from the First Harris Deed
2. Areas A and B
Areas A and B lie west of Area C. Specifically, Area A is the disputed boundary
between property owned by the Mellott Family Trust (a named defendant in this matter) and
property owned by MFLP. Area B constitutes the area of dispute along the western boundary of
property owned by John J. Mellott (a named defendant), which abuts the property of MFLP.
Areas A and B are divided by Mill Road; Area A is northeast of Mill Road and Area B is to the
southwest.
7
For the convenience of the reader, below find a side-by-side for comparison with the discrepancies noted in bold,
as we noted in our February 26,2014 Opinion:
First Harris Deed Second Harris Deed
I . North 79 degrees East 42 perches to a pine knotl l. North 79 degrees East 42 perches to a pine knot:
2. South 84 % East degrees 36 perches to pine knot in field; 2. South 84t/zEasf degrees 36 perches to pine knot in field;
3. North 4 % degrees East 38.4 perches to a pine knot: 3. North 54 % degrees East 38.4 perches to a pine knot;/
4. South 60 % degrees East 32.2 Þerches to a pine knot: 4. South 60 % degrees East 22.2 perches to a pine knot;
5. South 71 % degrees East 20 perches to a pine knot; 5. North 7l % degrees East 20 perches to a pine knot;
6. South 75 % degrees EasI 77.7 perches to a pine knot. 6. South 75 % degrees East 77 .7 perches to a pine knot.
8
A perch is equal to 16.5 feet.
5
The disputed boundary in Areas A and B is controlled by the Lake Second Survey, per
our February 26,2014 Order and Opinion. The Lake Second Survey, appears in the record as
Plaintiff s Exhibit 3 and Defendant's Exhibit 19.
il. THE DISPUTE
1. Testimonv of Clem Malot
In2010, MFLP engaged O'Neal Forestry, a contract logger, to cut timber in the vicinity
of Area A. T.P. 3l2lll9 at 16. Upon reaching the prqperty border, the logging team was
approached by Ralph Mellott ("Ralph"), a trustee of the Mellott Family Trust and a named
defendant in this action. Id. Ralph pointed out the presence of several rebars in the area and
expressed his belief that MFLP had cut timber over the property line denoted by the rebars and
into the property of the Mellott Family Trust. Id. at 17. R. Clem Malot ("Clem"), a general
partner of MFLP, acknowledged that two points identified as "iron rod found" in Area A on the
Vy'atson Survey were the pins that Ralph pointed out to him. Id. at37. These IRF were
highlighted in blue on the Watson Survey and are apart of the disputed boundary. Id.; see Pl.
Ex. l.
O'Neal Forestry later paid the Mellott Family Trust for two times the value of the timber;
the payment reduced MFLP's profit from the timbering. Clem believed the payment was
conditioned on the findings of a survey. T.P. 3l2lll9 at 18, 38-40.
MFLP contracted with DEB to obtain a survey of the boundary. Id. at l8-19. During
April through October of 2010, Watson, a surveyor employed by DEB, surveyed the relevant
boundaries of MFLP's property. Id. at2l.
6
After the survey was completed in 2012, Clem and Jana Malot, also a general partner of
MFLP, met with the Mellotts at DEB's office to discuss Watson's findings. Id. at22-24. There,
the Mellotts brought to Clem's attention another survey, performed by Tom Shelly, which
created areas of overlap with Watson's survey. Id. at23. Based on the meeting, Clem did not
believe that the Mellotts took exception to 'Watson's survey, and MFLP marked the boundary
line accordingly. Id. at25-26. MFLP then recommenced cutting timber, this time in Area C,
until receiving correspondence from the Mellotts that indicated the boundary was in dispute. Id.
at26.
Clem also testified that Howard Mellott the younger and Ralph are his cousins. Id. at27.
In addition to being cousins to Clem and neighbors, Ralph and Howard belonged to the Mill
Road Hunting Club ("the Club"). Id. at28. The Club leased property in the area of the dispute.
According to Clem, "Probably the easiest way for me to describe it in general terms is all the
area in dispute was the borderline between the neighboring property and MFLP for the purpose
of the hunting lease." Id. at29. According to Clem, the Club acknowledged the o'dark border
that Glenn Watson determined to be the border" in the northwestern and western areas in dispute
for the purpose of their lease and "maintained no trespassing signs along there." Id. at29. Areas
A, B, and C were all implicated in the Club lease. Id. at 33. The lease began in 2000 and
continued until2008 when there were some changes to the lease boundaries. Id. at34. During
that eight-year period, Clem believed that the Club agreed to the boundary as located by the
'Watson
Survey. Id.
7
2. Testimonv of Glenn Watson
As noted above, Watsone was retained by MFLP to survey the boundary between MFLP
and the respective property owned by the Mellotts. Id. at 53. Vy'atson began his work in the
northwest corner of Howard Mellott the younger's property. The northwest corner of Howard
Mellott the younger's property is also the northeast corner of Jeffrey E. Gibson's ("Gibson")
property. Id. at 57. A survey commissioned by Gibson, referred to herein as the "Angle
Survey," called for an iron rod in stones at that point.l0 Id.; see Pl. Ex. 12. Further, the Lake
Second Survey, performed in 1904, mentioned a stone pile at that location. T.P. 3l2ll1g at 57;
see Pl. Ex. 3, Def. Ex. 19. A search in that vicinity led Watson to an iron rod in the stone pile.
Id. at 58.
Watson then proceeded east and found a "fairly new" iron pin. Id. at 60. However,
Watson determined that the iron pin he found (marked on Watson's survey as IRF)Il was not the
property corner reflected in the documents. Id. at 60-61. Rather, he set an iron rod about 15 feet
south of the iron rod found, where he believed the property corner actually existed. Id. He
explained that he reached this conclusion based on the reference angle.12 Id.
After setting the iron rod, Watson turned north toward what is referred to herein as Areas
A and B. Watson reached the property of John Mellott ("John"), also a named defendant in this
matter. Id. at 6l-62. Watson then sought to verifu the corners of the property using a survey
performed for John by Bany Bestl3 ("the Best Survey") in July, 1989. Id.; see Pl. Ex. 5. Watson
'Watson is a Pennsylvania-licensed as of September 1985. Id. at 50-51. The parties stipulated to Watson,s
Í*ralification as an expert in the fields of land surveying and title search. Id. at 50.
'' The survey was recorded on April 30, 2001, following its completion by Robert Angle of the Best Angle
Associates Surveying and Engineering Firm. Id. at 57; see pl. Ex. 12.
" IRF is "iron rod found"
't watson explained, "the original surveyors[,] when they were doing their work[,] they were using magnetic
compasses and dragging a chain over the slope of the terrain[,] and it just depends on what the back site is; in other
words, what is that interior angle based on." Id. at 6l .
t'Barry Best is
also of Best Angle Associates Surveying and Engineering Firm. Id. at 62.
8
was unable to find monumentation at the northwestern and southwestern corners of John's
property; however, Watson found the remnants of a fence. T.P. 3l2lll9 at 6l-64. The Best
Survey indicates that a fence lies along the western boundary of John's property; i.e.,the
boundary between John's property and MFLP's property.'o Id. at 64; see Pl. Ex. 5. John's deed
incorporates the Best Survey and shows the fence as the boundary between the property being
conveyed by James and Clyde Mellott and property owned by J. Woodrow Mellott, MFLP's
predecessor in title. T.P. 3l2Il19 at 65-66.
Vy'atson did not believe that the fence along John's property was merely a livestock fence
Id. at I 53-54. Instead, Watson opined that the fence had been built to replace an earlier fence
that had been intended as a boundary fence. Id. at 155-56. Watson observed that awarrant
surveytt of the location completed on behalf of Robert Cummins ("the Cummins Warrant") had
modified an earlier warrant survey of the property of Peter Thompson ("the Thompson
warrant").16 T.P. 3l2ll19 at 154-55; see Def. 8x.25,26. watson further explained,
'o Watson explained that he had spoken with Bany Best who had "indicated that it was not his intention to leave a
strip, that he intended-fully intended to put that property line on the boundary"; John Mellott,,had a different
view." Id. at 137-38.
15
To assist the reader, some explanation of the warrant process may be helpful. "ln [Commonwealth v.] Coxe,
[4
U.S. 170, 1 L. Ed. 786, 4 Dall. 170 (Pa. I S00)l the Pennsylvania Supreme Court explained the process of the 1792
Act [which sold the remaining lands of the Commonwealth after the Divesting Act of 1779 transfened title of
47 ,000,000 acres ÍÌom the heirs of William Penn to the Commonwealth of Pennsylvania in exchange for f 130,000].
First, the land was surveyed, and then, in exchange for paying money to the Commonwealth and thè submission of
an appropriate survey, a land purchaser was issued a warrant by the land office. The warrant was considered to be a
'sales agreement between the proprietors or the Commonwealth on one hand and the citizen (applicant) on the other.
It also served as an order or authorization for the deputy surveyor to perform a survey on behailofthe applicant
(warrantee)." Plum Hollow Hunting Club. Inc. v. Fraker,2014Pa. Dist. & Cnty. Dec. LEXIS 2jg4,\j}q citing
Hermansen, Knud Everett, Boundary Retracement Principles and Procedures for Pennsylvania, (1986). The land
office acted as the local agent for the Commonwealth. Plum Hollow at *38. After the warrant, the Governor of the
Commonwealth issued a patent "which served as prima facie evidence of the title to the patent holder" and conveyed
"the full legal title of the state, and is evidence oftitle against one who relies of possession alone, one who shows no
title, and whose rights, if any, accrued after the date of the patent." Plum Hollow at *38-39, citing Olewine v.
Messmore, l8 A' 495, 495 (Pa. 1889). "ln addition to the land a purchaser obtained via survey and warrant process,
all property owners were given an additional six percent (6%) of land Íìee of charge to allow for the construction of
roads in what is commonly referred to as the 'incorporeal burden."' Plum Hollow at *38, citing In re Opening
Brivate Rd. for Benefit of O'Reill)¡, 5 A.3d 246,257 (pa. 2010).
'6 The Cummins Warrant is dated May g,1763. Def. Ex. 26. TheThompson Warrant is dated May 20, 1784. Def.
8x.25.
9
In normal cases and it's been my experience that when an older warrant survey
was refined and changed . . ., it was because somebody [who] had moved in as a
possessor potentially raised the fence at that point in time...
[A]t least there was a
misunderstanding of where the lines were until the fence went up[,] which is what
we recovered along the John Mellott property.
T.P. 3l21ll9 at 155.
Watson also found three iron rods running parallel to the fence; these were the rods that
Ralph had pointed out to Clem during the timber operation. T.P. 3/2lll9 at 66-67 . Watson
described the rods as "fairly new looking" and observed that they appeared to match the pin
found in the pile of stones. Id. at 6647. However, Watson found no record deeds or surveys
referring to iron pins on the border between John's property and MFLP's property . Id. at 67 .
In response to Defendants' assertion that the iron rods found (IRF on the survey) more
accurately reflect the distances in the Lake Second Survey, Watson opined that the iron rods fit
"[t]oo perfectly." Id. at 14647. He explained that surveyors in the past "followed the slope of
the ground;" however, in the present day, surveyors'oare required to report horizontal distances."
Id. at 95. As a result, Watson noted, "we find when we measure known points from old warrant
surveys, - - we always report shorter horizontal distances than what the original surveyor did
because of his measuring the distance along the slope of the ground." Id.
'Watson
described the area as '0... fairly rolling. It's not level. It's not severely steep
either, but it's up and down, and I believe that the Mellott Family Trust property was somewhat
cleared and what was the MFLP side was wooded." Id. at 67-68.
The length of the southernmost segment of Vy'atson's line in Area A measures 1,542.09
feet. Id. at 136; see Pl. Ex. 1. In perches, the length equals approximately 93.5 perches. T.p.
3121l19 at 136. The Lake Second Survey, however, notes the distance of the corresponding line
as 98.6 perches, ending at a post. Id.; see Pl. Ex. 3. Watson observed that no post was found,
l0
but his line ends at the beginning of the fence remnants; he reconciled the discrepancy with the
length of line by speculating that the scrivener [of the Lake Second Survey] inadvertently wrote
98.6, instead of 93.6. T.P. 3l2lll9 at 14041.
Seeking to verify the remaining corners of John's property, Watson searched along the
eastem edge of the property; one iron rod was found in the southeastern corner, and three iron
rods were found in the noftheastern corner of the property, along Mill Road. Id. at 62,68-
70. Watson additionally found a railroad spike in Mill Road.rT Id. at70-72. After measuring the
distance between the iron rods and the railroad spike, Watson determined that the distances were
consistent with a survey performed by Richard Fisher in 1989 ("the Fisher Survey") and
completed on behalf of James and Clyde Mellott, predecessors in title to the Mellott Family
Trust.rs Id,. at10-71,74-76; see pl. Ex. 4.
Once he had determined the boundaries of John's property, Watson attempted to
ascertain the boundaries of the Mellott Family Trust property to the north. T.P.3l2lll9 at72-
73. Using the iron rods conforming to the Fisher Survey as the beginning point, 'Watson
used the
bearings and distances of the record deeds to determine the remaining corners and set iron rods at
each location. Id.
Proceeding east toward what is described as Area C, Watson found a series of capped
pins, each denoting that it had been set by Thomas Shellyle in the course of completing a survey
dated June 8, 1998 ("the Shelly Survey"). Id. at78-79.20 Advancing east from the easternmost
capped pin, Watson searched for the property comer marker called for in the Shelly Survey;
't All four of the monuments discovered along Mill Road were found via metal detector. ld. ar72.
't The Fisher Survey does not correspond to the Mellott Family Trust tract bordering Rre-; rather, Fisher surveyed
what is presently the Mellott Family Trust tract immediately to the east of the tract bordering Area C. See Pl. Ex. 4.
'' Shelly, now deceased, was a surveyor with the engineering firm Shelly & Witter. ld. at22.
'u On Watson's survey, the northern line in Area C corresponds to the line created by the capped pins and noted in
the Shelly Survey. Watson identified the lines marked by Shelly's capped pins as'08," "C," "D," and "8." See pl.
Ex. l.
ll
however, he was unable to find the marker. Id. at 80-81. Watson instead tuned south, along the
eastern border of Howard Mellott the younger's property. This area, also a noted area of
overlap, is referued to in the record and herein as Area D.2l Id. at gl; see pl. Ex. 1.
Watson was unable to find the property comers referred to in the Shelly Survey in the
vicinity of Area D.22 Id. at 81. He did find an iron pipe in the northeast corïìer of the property
owned by Doris Mellott ("Doris"); this monument was referenced in a survey of Doris' property
completed by Bany Best. Id. Continuing south along the line called for in the Best survey,
Watson found an iron rod, and then another iron pipe at the southeastern corner of Doris'
property. Id. at 81-82. The three monuments were consistent with a line called for in Bany
Best's survey of Doris' property, but did not fit with the lines called for in the Shelly Survey. Id.
at 82. Additionally, the extension of the line formed by the three monuments was in accordance
with the observed timber line. Id.
Consistent with the foregoing evidence, and based on additional efforts to survey the
adjoining properties of 'Washabaugh, Taylor, and Lauffer, Watson ultimately concluded that the
line marked on the Vy'atson Survey as South 39 degrees, 6 minutes, 15 seconds West, 2,182J3
feet was the proper boundary between Howard Mellott's [the younger] property and MFLP's
property.23 Id. at 82-84. Also relevant to his conclusion was Watson's determination that the
boundaries of the MFLP tract matched the boundaries called for in the warrant survey of Samuel
Cowan's property, dated November 23, 1883 ("the Cowan Vy'arrant"). Id. at 84; see Pl. Ex.7 .
The Cowan Warrant cites the William Parker Warrant Survey, dated April21, 1797 ("theParker
'Warrant"),
as its western boundary; this boundary line comesponds to the boundary in Area D.
2r
Area D is not in dispute.
" The lines denoted by "F," "G," "H," "1," and "J" on the Watson Survey. See pl. Ex. l.
" The bearing of Watson's line is not in dispute per stipulation by the parties. Id. at 85-88.
t2
Id. V/atson fuither opined that his line matched the eastern line in the Parker Warrant. T.P.
3l2ll19 at84; see Pl. Ex. 6.
Refening to his survey in Areas C and D, Watson identifîed a rotational bearing issue
between the Shelly Survey and the field evidence of the Parker/Cowan Survey. Id. at 85.
Specifrcally, Watson identified a six-degree rotational problem. Id. V/atson opined that if
Shelly's work were rotated South 6 degrees, Area C would be eliminated. Id. at 85, 88.
Returning to the Plessinger Division Line, based, in part, on his reconciliation of the
Washabaugh property comers, Watson was not confident that Shelly's capped pins reflected the
original location of the Plessinger Division Line.24,2s Id. at 90. Rather, in 'Watson's opinion, the
Fisher Survey from 1989 included a line corresponding to the western segment of the Plessinger
Division Line as indicated in the First and Second Harris Deeds. Id. Watson concluded that the
two iron rods set by Fisher were placed in the locations of the two pine knots noted in the Harris
Deeds. Id. at 91; see Pl.8x.4.
After establishing what he believed to be the beginning of the Plessinger Division Line,
and recognizing that the Plessinger Division Line was only a portion of the Parker/Cowan
Warrant line, Watson began seeking the terminus or end point of the Parker Survey. T.P.
3l2lll9 at 93. The Parker Warrant calls for a pine tree, while the Cowan Warrant called for a
fallen pine tree. Id.; see Pl. Ex. 6,7. After an extensive search, Vy'atson was unable to find
evidence of a pine tree that would have existed in 1787 and 1883, the dates of the Parker and
Cowan Wanants, respectively. T.P. 3l2lllg at94-96.
to
Watson believes the job of a surveyor is to walk in the steps of the original surveyor. T.p.3l2ll19 atg2*g3.
" The Mellotts agree that the Shelly Survey is wrong; however, to the Mellotts, both the Watson's Survey and the
Shelly Survey's lines in Area C are in dispute. T.p.3/2ll19 at 87-88.
t3
Lacking monumentation in the northeast corner, to set the corner Watson used the lengths
reflected in the record deeds26 to measure the line beginning with the property corners found
around the Doris Mellott property and the Brett Ford property. Id. at 96. He compared those
property corners with the Lake Second Survey. Id. Watson noted, "The Lake Second Survey
was the survey that was done prior to some of the Howard Mellott fthe younger] predecessors
selling out parcels." Id. at 97. Watson explained that both Brett Ford's and Doris' parcels came
out of the Lake Second Survey. Id. "[...] but the common point between the Lake Second
Survey in this area is the southeast corner of the Brett Ford property..." (which is identified with
a green arow on Plaintiff s Exhibit 1). Id.; see Pl. Ex. 1.
Watson explained his methodology: Howard Mellott the younger owns the property
south of Area C and bordering the MFLP tract. See Pl. Ex. 1. Howard's current deed calls for a
boundary line marked as South 32% degrees West 101 .5 perches in Tract 1 ; the First Harris Deed
contains an almost identical caIl.27 T.P. 3l2lll9 at 100; see Pl. Ex. 39. The Lake Second Survey
calls for a line [highlighted in green on Defendant's Exhibit 19] of South 37 degrees West 105.4
perches to a pin oak. T.P. 3l2lll9 at 100,117; see Pl. Ex. 3, Def. Ex. 19. The two lengths
together equal 206.9 perches.2s T.P.3l2ll19 at96-102. Starting in the southeastern comer of
the Brett Ford property, Watson set the northeast comer in Area C, more specifically what he
believed to be the terminus of the Plessinger Division Line, by calculating "[t]he sum of the
length of the Brett Ford property, the next line of 417. 25 [feet], the next line of 497.33 [feet] and
the next line of 2,182.03 [feet]." Id. at l0l-102. As a result, Watson had "a beginning point and
26
Howard Mellott the younger's current deed for Tract2, Deed Book 503, and page 274. T.P.3l2lllg at 98; Pl. Ex.
39.
27
The First Harris Deed calls for a bearing ofSouth 32 % degrees, rather than South 32% degrees. See Pl. Ex. 9
tt 34 I 3.8S feet (206.9 perches x I 6.5 feet per perch :34 I 3.St feet)
l4
an ending point to follow from . . . in order to follow Frank Plessinger's footsteps in 1917 ." T.P.
3l2ll19 at 102,116.
Problernatically, the Plessinger Division Line is determined by the calls in the First Hanis
Deed which contains latent ambiguities and fails to close by over a mile. Id. at 103. To
reconcile the problems in the First Harris Deed, Watson felt that it made sense to look to the
Second Harris Deed to "see what was intend ed.u2e Id. at 103-04. Watson explained:
... the Second Harris Deed[,] while it is not complete in its description there is a
distance missing and a bearing missing in that description but it closes closer than
what the First Harris Deed does and I think, Your Honor, you had prepared a side
by side comparison between the two descriptions in your opinion on the
defendants' second motion for summary judgment, and it's easy to see when you
do that side by side comparison that the First Harris Tract...30
t...1
'When
we take a look at where the beginning point was on that side by side
comparison the first line matches. The second line matches and then there's a
discrepancy between the third and the fourth lines of significant difference. What
it seems to me and what I've seen before is that when a scrivener misses or
miswrites a particular course, it's usually in the form of dropping something,
dropping a letter, dropping a number, and what appears to have happened is that
the third course, the five was dropped in writing the First Harris Deed, so instead
of being North 54 and a half degrees East, the scrivener wrote it as North 4 and a
halfdegrees East, a significant difference of50 degrees.
te
Watson completed his survey prior to this Court's ruling that the First Harris Deed is superior to the Second
Harris Deed. At the time he completed his survey, he believed that the Second Harris Deed had superior title. T.P
3l2l/19 at I 10.
30
Again, for the convenience of the reader below find the side-by-side comparison of the two deeds with the
di noted in bo as we noted in our 2014 nron
First Hanis Deed Second Harris Deed
L North 79 degrees East 42 pelches to a pine knot: l. North79 degrees East 42 perches to a pine knot:
2. South 84 % East degrees 36 perches to pine knot in field; 2. South 84 t/zEast degrees 36 perches to pine knot in field;
3. North 4 lz degrees East 38.4 perches to a pine knot;ro 3. North 54 % degrees East 38.4 perches to a pine knot:r0
¿fSoulh 60 % degrees East 32.2 perches to a pine knot; 4. South 60 % degrees East22.2 perches to a pine knot;
5. South 71 3A degrees East 20 perches to a pine knot; 5. North 7l % degrees East 20 perches to a pine knot;
6. South 7 5 t/q d,egrees East 77 .7 Derches to a oine knot. 6. South 75 % degrees Easf 77.7 perches to a pine knot.
15
The second indication of a significant difference is the very next line where the
two distances don't match by l0 perches. Again, I think it was a matter of the
scrivener not duplicating what he was given to copy, but at any rate once you
recognize those two potential errors it becomes a necessity to rely on the math
from the Second Hanis Deed because it forms a better figure.
In my opinion it makes you follow in the footsteps of what Plessinger did in 1917
and when you make that six degree correction you wind up where he did; in other
words, when you apply that six degree correction to lines B, C, D, and E it
follows closely to what the Harris Survey, the second deed description, and you
wind up at the ending point giving Howard his full length - Howard Mellott [the
younger] his full length of a deed length along his property, so in my mind we've
checked off a couple of boxes. We followed in the footsteps of the original
surveyor. The math of Second Hanis Deed is more closely what the intention
was of what Plessinger did from a bearings distance perspective, and we fit within
other record documents and physical evidence that we find on the ground
reconciling some of these effor that are with - latent ambiguities within the deed
descriptions.
T.P.3l2ll19 at 104-106 (footnote added).
In Watson's professional opinion, to a reasonable degree of professional certainty, his
survey conectly interprets the boundary between MFLP and the Mellotts. Id. at 106. In
addition, Watson testified that he had spent in excess of 100 hours researching, formulating his
boundary survey, and reconciling in his own mind his opinion that his survey was the correct
boundary between the properties. Id. at 107. Approximately a third to a half of the over 100
hours was spent title searching. Id. at 121. Watson acknowledged that at the time he completed
his survey, he did not know about Noah Mellott. Id. at I22.
Watson did not rely on acreage when he completed his survey; rather, he was "more
interested in knowing where the division line was run on the ground." Id. at 11 1. The field
evidence located by V/atson was the two pine knots as indicated on the Fisher Survey. Id.
16
3. Testimony of Allen Henry
Allen Henry ("Henry") undertook a title search on behalf of the Mellotts for purposes of
this litigation.3' He also used software to the plot deed descriptions. Id. at 192.
A. Areas A and B
Henry's research began in the vicinity of Areas A and B. Henry explained that the
Mellott's title in Areas A and B is derived from the Parker 'Warrant, surveyed on April 21,1796,
which cites to o'Cummins Land" to the west and to "Ph.p Miller" to the north. T.P.3122119 at 5-
9; see Def. Ex. 24 and26.
From the Parker Warrant, Henry obtained the Cummins Warrant, surveyed September 5,
1787, which led him to the Thompson Warrant, surveyed May 20,1784. T.P. 3l22ll9 af 8-12;
see Def. F;x.25,26. The Thompson Wanant is a survey of the same location as the Cummins
Warrant, performed at an earlier date; however, the two warrants do not match. Id. at 13.
Compare Def. Ex. 25,26.32 Using the Cummins Vy'arrant, Henry opined that the boundary at
issue [in Areas A and B] is the dashed or o'picket" line highlighted in blue on Defendant's
Exhibit 26. T.P. 3122119 at 16; see Def. F;x.26.
The parties dispute whether a line in the Cummins Vy'arrant says "South 43 degrees West"
or "South 13 degrees West." Watson interpreted the number aso'43"; while Henry interpreted
the number as "13". T.P.3l2ll19 at 150-153; T.P. 3l22l19 at 17-18. To prove his interpretation
'' MFLP objected to Henry's qualification by the Court as an expert witness. See T.P. 3l2lllg at 184-204. We
overruled the objection and permitted Henry to testifu, understanding Henry's quali{ications. Rather than preclude
the testimony, we noted that Henry's qualifications go to the weight, rather than the admissibility of his testimony.
Ld. at203-204. Henry holds a bachelor's degree in mathematics and a master's degree in computer science. Id. at
185. He taught computer science for approximately 40 years before retiring in 2010. Id. at I 85-86. His experience
in title search stems from his involvement in securing vacant land for his hunting club; in the process of completing
the relevant application, Henry reviewed hundreds of deeds. Id. at 18G88. He was subsequently involved in court
cases, including boundary disputes pertaining to the hunting club as well as oil and gas cases in Williamsport,
Pennsylvania. Id. at 188-90. Henry is not a surveyor and did not complete any survey for the purposes ofthis
litigation.
'2 The trial testimony references highlighted areas on the exhibits that are simply not there. We feel this error
occurred as Counsel for the Mellotts and Henry attempted to simultaneously mark exhibits during testimony. See
T.P.3/22/19 at l5-17; see Def. F,x.25,26.
T7
was coffect, Henry used software to plot the Cummins Warrant in several ways; specifically,
Henry assumed the number to be a "43" , a "13" , and a "31" . Id. at IB-24; see Def. Ex. 43 .33
Henry found that when he plotted a South 43 degrees West line, it did not create a closed figure.
Id.2l. Plotting a South 13 degrees V/est line did not result in a closed figure. Id. at22. However,
plotting a line of South 31 degrees West created a closed geometric shape; accordingly, Henry
concluded that the scrivener had erroneously reversed the 3 and the l. Id. at 22-24. Henry fuither
concluded that his plot of the Cummins Wamant using a South 31 degrees West line appeared to
match the shape depicted in the Cummins Warrant. Id. at25.
Henry next turned to the Lake Second Survey. See Def. Ex. 19. Refening to the exhibit,
Henry identified the line highlighted in pink [on Defendant's Exhibit 19] as the western
boundary between MFLP and Defendants [in Areas A and B]. T.P. 3l22l1g at27. Again, the
parties dispute the interpretation of numerals in the length of a line in the Lake Second Survey.
Id. Specifically, the dispute is over whether a line is "93.6" perches, as interpreted by Watson, or
"98.6" perches as interpreted by Henry. Id. at 28. Henry used the Cummins Warrant, as well as
deeds he identified as being in MFLP's chain of title, "the Skiles Deed" and "the Price Deed," to
confirm his interpretation. Id. at28-32; See Def. Ex. 30, 31.
Henry requested Timothy Witter, a professional surveyor who also testified at trial,
prepare a summary drawing of the Thompson and Cummins Warrant Surveys, incorporating the
Price and Skiles Deeds and the Lake Second Survey. T.P.3122119 at37; Def. Ex. 27. With this
drawing, Henry attempted to demonstrate that the 83.2 perch line from the Skiles Deed, when
added to the 15.4 perch line from the Price Deed, yields the 98.6 perch line called for in the Lake
t' Over MFLP's objection, Defendant's Exhibit 43 was admitted for demonstrative purposes only
l8
Second Survey. T.P. 3l22ll9 at 44-45; Def. Ex. 27 .34 The line highlighted in blue on
Defendant's Exhibit 27 represents two courses from both the Lake Second Survey and the Price
Deed. Id. at 46; Def. Ex. 27. Henry opined that the fînal call of the Lake Second Survey, as
plotted on Defendant's Exhibit2T,is S 88 E 31.7 perches.
B. Area C
In Area C, Henry was asked to look at the chain of title for Defendants. T.P.3122119 at
53. He traced title back to Noah, "and there I found that [sic] was pulportedly the description in
the - that was the description that was used in the first - at least it was an attempt to define the
division between the First and Second Harris Deed..." Id. at 55. Noah conveyed to Warner
Thomas ("Thomas") on or around November 14,1870; Henry noted that the conveyance was
part of a larger tract of land conveyed by Divelbiss to Valance and Noah by deed dated
November 11, 1865. Id. at 60; Def. Ex. 7. Noah had a judgment against Thomas that was
satisfied on April 19, 1877 . Id. at 61; Def. Ex. 5.
Henry located the deed from Divelbiss to Noah and Vallance. T.P. 3l22ll9 at63;Def. Ex.
9. Henry did not locate any deed conveying the property at issue to Divelbiss. Id. at 64. The
record suggests that Divelbiss obtained a25-acre tract from the High Sheriff of Fulton County as
well as a second tract containing 100 acres. Id. at 65. Henry noted that the deed from Divelbiss
to Noah and Vallance includes no metes and bounds description, only a total quantity of land and
adjoiners. Id. at 66; see Def. Ex. 9.
The agreement between Noah and Vallance recited an undivided parcel of land in
Licking Creek Township containing 125 acres, more or less. T.P. 3l22l19 at 67-68,70; Def. Ex.
8. Henry uncovered no evidence that Noah acquired title to property other than that which he
3a
Defendant's Exhibit 27 was admitted over the objection of MFLP for demonstrative purposes only. The drawing
is not substantive evidence of the length of the line in question.
19
redeived from Divelbiss. Id. at 70. He also found no evidence that Noah and Vallance acquired
anl'thing more than 125 acres. Id. Philip Miller, George Metzler, Andrew Sipes were noted as
adjoining property owners. Id. at 68. The agreement does include a drawing which depicts
Noah with I l0 acres,40 perches and Vallance with 49 acres, 189 perches. Id. at 70, see Def. Ex.
8.
Based on his analysis, Henry concluded that a o'dead pine fallen or something like that"
called for in the agreement between Noah and Vallance is the Parker/Cowan/Miller Corner. Id.
at73.
Based on the evidence Henry found, "At the time they created their agreement fNoah and
Vallance] had 125 acres more or less." T.P. 3122119 at 78. However, the agreement indicates
that Noah and Vallance surveyed or drafted approximately 170 acres. Id. at79. Henry traced the
title from Noah to George Harris. Id. at 81. He did not find any evidence George and Sally
Harris, grantors of the First and Second Harris Deeds, had acquired any additional property
-
other than what Noah had. Id. at 81.
The First Harris Deed conveyed 82 acres, 7l perches'onet measure." T.P. 3l22lI9 at 83;
Def. Ex. 1 . The Second Harris Deed conv eyed 42 acres, 3 7 perches "net measure." Id. at 83 ;
Def. Ex. 2. According to Henry, the total acreage conveyed by both deeds was approximately
125 acres. Id. at 84-85. In Henry's opinion, George Harris did not have 125 acres to convey.3s
Id.
According to Henry, Howard Mellott, the elder, owned everything in the William Parker
warrant [through the First Harris Deed and other conveyances] except for the parcel transferred
to G.C. Mellott by the Second Harris Deed. T.P.3l22l19 at87.
t' There is no evidence that the Vallance title was ever acquired by George Harris. T .P. 3122/19 at 86.
20
4. Testimonv of Timothy Witter
Defendants presented the testimony of professional land surveyor Timothy G. Witter
("Witter").36 V/itter was engaged to perform a survey of the western boundary which Watson
had already surveyed [described herein as Areas A and B]. T.P. 3l22ll9 at 133. Witter
described his process, which included physically locating iron rods, "coordinated in our
computer system and inversed distances and evaluated and reviewed our findings and compared
that to the Second Lake Survey and ultimately prepared a drawing showing our findings and how
things compared." Id. at 134. Witter's Survey is dated October 27,2017, and consists of three
drawings. See Def. Ex. 39.
Witter located the first existing iron rod in stones (IRF in stones #l).t' Id. at 137; Def.
Ex. 39. He did not locate the pine stump next called for in the Lake Second Survey, but did hnd
two rebar in that location (IRF #2, "Rebar (found)"). Id. He located the third iron rod (lRF #3).
Id. at 138. He located rebars in the area of [Mill Road] (IRF #4 and IRS #48). T.P. 3l22ll9 at
139-140. He located the fifth and sixth iron rods. (IRF #5 and IRF #6). Id. at 140.
V/itter recorded his work on a set of drawings. See Def. Ex. 39. He explained, o'Our
courses and distances that we show on [Defendants' Exhibit 39] in black are based on our actual
field measurements in the Pennsylvania State Grid Datum. [...] The red are the actual courses
and distances in perches as shown on the Lake [Second] Survey." Id. at 141. Witter explained
that there is no red line "because that red line would then be under the black line if you would."
'u Witte. is employed by Fox and Associates and manages the Greencastle Office as Shelly, Witter and Fox. T.p.
3/22/19 at l3l'132. He has been employed as a surveyor since graduating from Penn State Mont Alto in 1978.
MFLP stipulated to witter's qualihcations as a professional land surveyor. Id.
" Vy'itter acknowledged that he searched the property corners of Jeffrey Gibson from the Angle Survey and found
that the corners of Gibson matched the iron rod found in stones, which helped to reconcile that the iron rod found in
stones was the correct corner. T.P.3l22ll9 at 156.
2t
Id. There are some small variances where the red line deviates from the iron rods found, but
according to witter, it is not enough to show up at this scale. rd. at 142.
Witter included tables which show "comparisons and differences between the bearings or
surveys, Lake [Second] Survey bearings." T.P. 3l22ll9 at 143; Def. Ex. 39, Table l. The first
column on Defendant's Exhibit 39, Table l, represents the bearings from the actual field
locations of the iron rods found. Id. 'Witter found no original monumentation. Therefore, he
explained, "... if there's absolutely no monuments existing that you could find then you would
use the courses and distances of the deed you're working with." Id. at 144. The second column
in red represents the Lake [Second] Survey bearings. Id. The third column in green represents,
"They are adjusted to the physical location of the pins we located by taking the Lake
[Second]
Survey bearing of South 88 Southeast and laying that on the first course and then computing the
existing location of the iron rods throughout." Id. The fourth column shows "the difference
between the Lake [Second] Survey courses or bearings and the bearings that we adjusted to." Id.
at 145. In Witter's opinion, the bearing differences "show how closely they resemble the Lake
[Second] Survey." Id.
On cross-examination Witter conceded that his drawing has an 84.63'line of forced
closure that Watson's does not have and that does not appear on the Lake Second Survey.38 T.p.
3l22ll9 at 151. He also acknowledged that a survey prepared by Bany Best for James and Clyde
Mellott, predecessors in interest to Defendant Mellott Family Trust, "held the line along an
existing identified monument on the ground in the form of an old fence" and that Watson used
"On Watson's Survey, the referenced line of forced closure is the 6tl' course, with a bearing of S 06"3 1,07,, W that
does not appear on the Lake Second Survey. T.P. 3l2l/19 at 159-160.
22
the same longstanding monument. Id. at 152.3e Witter also agreed that the only person who
surveyed the boundary the entire way around the property of MFLP and Defendants "and
reconciled the pin in the stones all the way over the Marjorie Mellott's property" was Watson.
Id. at 154. V/itter's assignment was limited to determining if the iron rods found "were in a
similar shape to the western boundary of the Lake Second survey." Id. at 155.
5. Testimony of Ralph Mellott
Defendants presented the testimony of Ralph Mellott (refened to as "Ralph,"
throughout), a named defendant, who, along with his wife Doretta K. Mellott, is a trustee of the
Mellott Family Trust. T.P.3l22ll9 at ll4. Ralph is the grandson of Howard J. Mellotr the elder.
Id. Ralph recalled monuments on the property "[...] there as long as I can remember." Id. at I 16.
ao'al
Specifically, Ralph identified a monument o'with a stone around it," and an iron pipe in the
ground "in the hollow back of John Mellott's house." Id. (It appears that these monuments were
marked with green 66X's" on Defendant's Exhibit 19.)
Ralph reported that the other iron rods found were placed by Jeremy Fletcher
("Fletcher"), a surveyor who "run [sic] it there along before the other outfit come [sic] in." Id. at
117-118. Fletcher belonged to the Mill Road Hunting Club. Id. at 118. Ralph helped Fletcher
when he set the iron rods. Id. at 118. Referring to Plaintiff s Exhibit I (misidentified in the
record by counsel as Defendant's Exhibit 1), Ralph identified the iron rods found in Area A and
o'So
'n In response to Mr. Benchoff s inquiry, that fence has existed since from Ralph's testimony approximately 70
years and it was recognized on Barry Best's Survey which is dated August 28, l98g?- Witter responded, "Yes." Id.
at 153.
oo
It was frustrating for this Couft to attempt to review the transcript and evaluate the testimony without adequate
reference by counsel to the exhibits used with this witness (and others). We presume that counsel is referring to
Def. Ex. 19, the Lake Second Survey based on the cross-examination questions. See T.P. 3l22llg at 116; 124-125.
ot
Ralph was born in 1943. Id. at I17.
23
highlighted in blue as the "pins" Fletcher set. Id. at I 18. When the timber was cut to the south
of the markers, he knew the timber contractor was on his property. Id.
Ralph was also aware of the boundary markers set by the 1989 Fisher Survey, as Fisher
prepared the survey for Ralph. T.P.3l22ll9 at ll9. Ralph was aware of an iron stake at lMill]
[R]oad, as well as several others. Id. Ralph was aware that the Fisher Survey fîts within the
boundary survey prepared by Watson. Id. at 123; see Pl. Ex. 4. Further, Ralph acknowledged
that John's property and MFLP adjoin o'on the same line." Id. at I24.
V/ith respect to the meeting with Watson, Ralph testified that he told them he knew
where the pins were but he was ignored. Id. at 122. Ralph helped build the fence at issue with
his grandfather and his uncle. Id. They fenced in a field for cattle; they did not fence in the
woods. Id. Ralph recalls there was a strip of woods between "the field and the line." Id. at 126
6. Testimony of John Mellott
John Mellott (referred to as "John" throughout) testified that Barry Best used the fence
line as the boundary line. T.P.3l22ll9 at 129. John did not know if the fence was the boundary
line. Id. at 130.
7. Glenn Watson. in rebuttal
Watson was called to rebut the testimony of Ralph with respect to the pins set by
Fletcher. According to Vy'atson, Fletcher was an employee of DEB under Watson's supervision
working as the crew chief for this project. T.P.3l22ll9 at 176. Fletcher worked with Watson to
set the pins on the line that V/atson determined, "upon reconciliation of all of the majority of the
field physical and record evidence," was the border between MFLP and the Mellotts. Id. When
24
Fletcher worked for Watson, Fletcher was unlicensed and Watson would have confirmed any
field work Fletcher did. Id. at 176-177.
CONCLUSI NS OF LAW
"The plaintiff bringing a quiet title action has the burden of proof and must recover on the
strength of its own title." Woodhouse Hunting Club. Inc. v. Hoyt, 183 A.3d 453,457 (Pa.Super.
2018). The plaintiff must be in possession of the land in controversy; if he is out of possession,
his sole remedy is an action in ejectment. Plauchak v. Boling,653 A.2d 671,674 (Pa.Super.
1995). The plaintiff must demonstrate good title "by a fair preponderance of the evidence."42
Poffenbereerv. Goldstein,776 A.2d1037,1041 (Pa.Cmwlth.2001). Plaintiff mustshowprima
facie evidence of title and, upon such a showing, is deemed to have title, unless better title is
shown by an adverse party. Id. (citing Pa. Game Comm'n v. Ulrich, s65 A.2d 859, 861
(Pa.Cmwlth. 1989)).
In resolving a boundary dispute, the trial court's function "is to ascertain the intent of the
grantor at the time of the original subdivision." Pencil v. Buchart, 551, A.2d302,305-06
(Pa.Super.1988). "The question of what is a boundary is a matter of law, but the question of
where a boundary line, or a corner, is actually located is a question of fact." Baker v. Roslyn
Swim Club ,213 A.2d 145, 148 (Pa.Super. 1965), quoting Guerra v. Galatic , 137 A.2d 866
(Pa.Super. 1958). "Boundaries may be established by circumstantial as well as direct evidence."
ot
"A pr.ponderance of the evidence is the greater weight of the eviden ce, i.e.oto tip a scale slightly is the criteria or
requirement for preponderance of the evidence. The preponderance test is the normal burden of proof in most civil
proceedings. Indeed, the term "burden of proof," standing alone, implicitly means "by the preponderance of the
evidence." In re Navana, 185 A.3d 342,354 (Pa. Super. 2018) (internal quotation marks and citations omitted).
25
Rosl)¡n Swim Club,2l3 A.2d at 748, quoting Hostetter v. Commonwealth, 80 A.2d 719 (Pa.
19sl).
o'As
a general rule, where there is a conflict between course and distances or quantity of
land and natural or artificial monuments, the monuments prevail. Moreover, natural monuments
take preference over artificial marks or monuments."43 Pencil at306 (citation omitted). See also,
Roslyn Swim Club,213 A.2d at 148, ("Courses and distances in a deed must give way to
monuments on the ground.")
However, these rules "are no imperative but are aides in construction that must yield to a
contrary showing." Id. Further, the "rule cannot prevail where the monument claimed is so
manifestly wrong as to lead to an absurd result... An alleged monument, which is a palpable
mistake, will be disregarded." Id. quoting Post et at v. Wilkes -Barue Connecting R.R. Co., 133
A.377,378 (Pa. 1926).44 In such a case, "a resort will be had to the courses, distances and
quantity." Id.
Accordingly, courses and distances will prevail over monuments where absurd
consequences might ensue by giving controlling influence to a call for the latter,
or where, in any given case, a consideration of all the facts and circumstances
shows a call for distance to be the more reliable or certain, or where the call for
the monument was inserted by mistake or inadvertence.
Roslyn Swim Club,2l3 A.2d at 149.
To establish the order of precedence between inconsistent calls in a deed, the Superior
Court instructed:
Where the calls for the location of boundaries to land are inconsi sterÍ., other
things being equal, resort is to be had first to natural objects or landmarks, next to
o' o'Monuments
are visible markers or indications left on natural or other objects indicating the line of a survey."
Long Run Timber Company v. DCNR, 145 A.3d 1217, fn.6 (Pa.Cmwlth.2016), quoting Grier v. Pa. Coal Co . 14 A.
480,482 (Pa. 1 889).
uo
ll C,J.S. Boundaries $51 instructs, "The rule that artificial monuments control courses and distances in case of
conflict is not an imperative and exclusive one, but is a rule of construction to ascertain, orto aid in determining, the
intention of the parties; and it is not followed where strict adherence to the call for a monument would lead to a
construction plainly inconsistent with such intention."
26
artificial monuments, then to adjacent boundaries (which are considered a sort of
monument), and thereafter to courses and distances.
t...1
Where, however, it is apparent that a mistake exists with respect to the calls, an
inferior means of location may control a higher one. In the last analysis, the call
adopted as the controlling one should be that most consistent with the apparent
intent or the grantor.
Generally, among the inferior calls, course will control distance if they are
inconsistent, and course and distance will control quantity.
Roslyn Swim Club,213 A.zdatl4$-g,quoting l2 Am.Jur.2d Boundaries, $65,603 (emphasis in
original).
Further, with respect to quantity of land:
Evidence of the acreage of land, especially where the number of acres is followed
by the words 'more or less', has little weight as against specific boundaries and is
in its nature an uncertain method of description and often a mere estimate. Where,
however, a doubt exists as to the actual location of the boundary and the writing
contains no words to definitely fìx the line by either metes and bounds or
monuments on the ground, evidence of the acreage becomes a material factor in
the determination of the intention of the parties...
Pencil, 551 A.2d at 307 , quoting Dawson v. coulter, 106 A. l 87, I 88 (pa. 1919).
V/ith these principles in mind, we turn our attention to the dispute at issue.
I. AREA C
Recall that our February 26,2014 Opinion and Order held that the boundary between the
parties' respective tracts in Area C is the Plessinger Division Line. The issue for resolution is
where on the ground the Plessinger Division Line lies.
A. MF'LP:
As to Area C, MFLP relies on the testimony of Watson, a licensed surveyor with over 25
years of experience, to establish the location of the Plessinger Division Line. Watson's credible
testimony, as detailed above, described in methodical detail the step-by-step process he
27
undertook to recreate the Plessinger Division line. MFLP therefore argues that the division line
in Area C is where Vy'atson found it to be as evidenced by his survey. See Pl. Ex. 1.
MFLP, as the moving party in this quiet title action, has met its burden of demonstrating
good title through Watson's testimony. "Testimony of experienced surveyors, especially those
familiar with original monuments, is extremely valuable in establishing the location of boundary
lines." Com.. Pennsylvania Game Comm'n v. Keown , 471 A.2d 937 , 940 (Pa.Cmwlth. 1934)
(intemal citations omitted). As such, MFLP is deemed to have title unless or until better title is
demonstrated by the Mellotts. See Poffenberger, supra.
B. The Mellotts:
Contrary to their prior arguments and this Court's prior findings in theirfavor,the
Mellotts now argue that the Plessinger Division Line is not the boundary between MFLP Tract A
and Mellotts' Tract I in Area C. Compare Motion for Summary Judgment Opinion and Order,
February 26,2014 with Defendants' Proposed Findings of Fact and Conclusions of Law ("Def.
FF/CL"). What the Mellotts ultimately request is that this Court award MFLP "acreage in the
northeast comer of the tract and define the tract by acreage at the Court's discretion." Def.
FFiCL, CLfl26. In the alternative, the Mellotts suggest that the parties be permitted the chance to
agree to the location. Id.as
At its simplest, the Mellotts' position is that George and Sally Harris could not divide that
which they not own; therefore, the Plessinger Division Line must be disregarded if it cannot be
demonstrated that the Plessinger Division Line was physically located within the area of Noah
a5
As this matter has been pending since the filing of the initial complaint in November,20l2,and since we issued
rulings on several motions seeking summary judgment that could have been the basis for compromise, we are
constrained to find that what these parties now need is a definitive ruling from this Court that can either be accepted
as the final resolution of this matter or the basis for appellate review. Sending the parties "back to the drawing
board" to reach an agreement is not an acceptable resolution and would likely only prolong this litigation further.
28
Mellott's title. To fuither their position, the Mellotts note the historical record supports the
conclusion that Divelbiss possessed only 125 acres, more or less, to convey to Noah and
Vallance in 1865 and "MFLP failed to present any evidence that would allow the Court to
establish a description based on monuments or metes-and-bounds description for the title
conveyed by [Divelbiss] to [Noah] and [Vallance]." Def. FF/CL, CLl]lS. The Mellons argue, as
a matter of law, this Court must rely on acreage. Id. Therefore, Noah and Vallance could not
have divided their 125-acre parcel into a I l0-acre, 4O-perch parcel (to Noah) and, a 49-acre, 139-
perch parcel (to Vallance). The Mellotts argue that it follows that Noah did not own-and
therefore could not convey-l10 acres, 40 perches to remote grantees Lizzie McClure and
ultimately George and Sally Harris.
We may agree with the Mellotts that the historical record and simple mathematics lends
some support for such a position - but only if we accept as fact that Divelbiss only owned and
conveyed to Noah and Vallance 125 acres, more or less. Recall, "Evidence of the acreage of
land, especially where the number is followed by the words omore or less', has little weight as
against specific boundaries and is in its nature an uncertain method of description and often a
mere estimate." Pencil, 551 A.2d at307.
The historical record appears void of any metes-and-bounds description of the property
Divelbiss conveyed to Noah and Vallance. Neither Henry nor Watson uncovered such a
description. However, the 1870 agreement dividing the property between Vallance and Noah
incorporates a drawing with a metes-and-bounds description and adjoiners. See Def. Ex. 8.
"Where maps are referred to in a conveyance, they are regarded as incorporated into the
instrument and given considerable weight in determining the true description of the land." Com..
29
Pennsylvania Game Comm'n v. Keown , 471 A.2d 937 , 93940 (Pa. Cmwlth.1984) citing Dallas
Borough Annexation Case. 82 A.2d 676 (Pa.Super.l95 I ).
Neither party analyzed the descriptions as set forth in the drawing incorporated into the
Noah/Vallance Agreement other than to note the total quantity of land Noah and Vallance each
intended to receive as a result of the division. In fact, the Mellotts argue that the survey
incorporated into the agreement "is not effective to enlarge their joint title beyond what was
conveyed in the Divelbiss deed." Def. FF/CI, CL!T16. Vy'e agree that title may not be enlarged by
the survey; however, the inquiry cannot end there.
The drawing has another important use * describing the parcel conveyed.
The title to lands cannot be acquired or established by unoffîcial diagrams, drafts,
or surveys. But such papers may often be extremely useful in fixing and
designating doubtful boundaries. It has been an ancient custom of the courts to
receive them in evidence for what they are worth, in illustrating a question of
boundary.
Sweigart v. Richards, 8 Pa. 436, 438-39 (1848)(emphasis in original). Therefore, we will use
the drawing, oofor what it is worth." Specifically, the drawing does not expand or increase the
title of Noah (or Vallance); rather, the drawing is evidence that the parcel actually owned by
Noah and Vallance and subsequently divided, when surveyed, included more than 125 acres.
Noah's title is not increased by the drawing; rather, Noah's title is more accurately defined and
described by the drawing.
Defendant's urge us to find that Noah and Vallance owned only 125 acres, period. They
fuither argue that the legal principle of "priority" compels the conclusion that the First Harris
Deed's explicit conveyance of 82 acres, 71 perches to Howard Mellott the elder further demands
the conclusion that only the remainder, i.e., 3 acres, more or less, was available to be conveyed
30
to Grover Mellott in the Second Harris Deed.a6 Defendants suggest, "The boundary for Noah
Mellott must be constructed by considering his total acreage after apportioning the boundaryt I
between Noah Mellott and William Vallance based on their joint title of 125 [acres,] more or
less." Def. FF/CL,CLn2l, (footnote omitted). Because neither Noah nor Vallance had superior
title, Defendant's argue apportionment is required. To that end, Defendants propose the
following calculation :
Based on the acreage that Noah Mellott and William Vallance purported to
divide, Noah Mellott acquired 68.86 percent of the title contained in the Divelbiss
Deed (110.25 acres divided by 160.11875 acres total) and William Vallance
acquired 31.14 percent of the title (49.86875 acres divided by 160.11875 acres
total). Applying these percentages to the title conveyed by the Divelbiss Deed,
Noah Mellott only acquired 86.075 acres or 86 acres and 12 perches.
Def. FF/CL,CLn24.47
Practically speaking, what the Mellotts propose could upend nearly 150 years of property
ownership by MFLP and their predecessors in title.as Indeed, Noah and Vallance entered into an
agreement in 1870 to divide the land they obtained from Divelbiss in 1865. The agreement
included a drawing or survey with a specific metes-and-bounds description of each parcel as well
as noted the adjoiners. After a series of conveyances, Noah's parcel was obtained by George and
Sally Harris. The First and Second Harris Deeds, with specific, although erroneous metes-and-
bounds descriptions, were executed in lgIl and recorde d in 1944 and 1932, respectively.
The act of recording provided all concerned - including future purchasers - the
opportunity to learn of error and inconsistency. Inexplicably, the first discovery of the errors in
a6
Recall that our February 26,z}l4,Opinion and Order found that the First Hanis Deed was superior to the Second
Hanis Deed.
ot
As we understand the calculation:
125 acres x .6886 : 86.075 acres to Noah
125 acres x .3 I l4 :38.925 acres to Vallance.
ot
We are also not convinced that such a determination would not have the unintended consequence of negatively
afflecting the property rights of adjoining landowners not parties to this litigation.
31
the metes-and-bounds descriptions in the First and Second Harris Deeds was in the instant
timbering dispute in 2010, some 140 years after Noah and Vallance entered their agreement and
90 years after the Harris Deeds were executed. Now, in2}l9,this Court is asked to turn back
time and correct the errors.
To correct the enors in the Harris Deeds we must decide what, precisely, the erïors are;
scrivener effors or something far more extensive.
The Mellotts' proposed resolution would also effectively vacate our prior ruling. V/e find
that the "law of the case" doctrine can, and in this instance does, preclude such a result.
The law of the case doctrine refers to a family of rules which embody the concept
that a court involved in the later phases of a litigated matter should not reopen
questions decided by another judge of that same court or by a higher cout in the
earlier phases of the matter. ... The various rules which make up the law of the
case doctrine serve not only to promote the goal ofjudicial economy ... but also
operate ( 1 ) to protect the settled expectations of the parties; (2) to insure
uniformity of decisions; (3) to maintain consistency during the course of a single
case; (4) to effectuate the proper and streamlined administration ofjustice; and (5)
to bring litigation to an end. Absent extraordinary circumstances, the doctrine bars
a judge from revisiting a ruling previously decided by another judge of the same
court. In determining whether the law of the case doctrine applies, the appellate
court looks to where the rulings occurred in the context of the procedural posture
of the case. Our Supreme Court has cautioned that [i]n some circumstances,
however, application of the rule can thwart the very purpose the rule was intended
to serve, i.e.,that judicial economy and efficiency be maintained. Thus we [have
said] that departure from the rule of coordinate jurisdiction is allowed where the
prior holding was clearly effoneous and would create a manifest injustice if
followed. Moreover, the rule does not apply where two motions differ in kind,
then a second judge is not precluded from granting relief though another judge
has denied an earlier motion. The rule does not apply when distinct procedural
postures present different considerations, then a substituted judge may correct
mistakes made by another judge at an earlier stage of the trial process, or, perhaps
more accurately, may revisit provisional rulings made earlier in the litigation.
Windows v. Erie Ins. Exch., 161 A.3d 953,959 (Pa.Super. 2017) (internal citations and
quotations marks omitted).
32
Based on the evidence presented we are constrained to find that the errors in the First and
Second Harris Deeds are scrivener errors. We find compelling the metes-and-bounds description
on the 1870 agreement, allowing us to find that the parcel Noah and Vallance owned and
subsequently divided initially included more than 125 acres.
Accordingly, despite Henry's careful research and the credible evidence on which he
instructed the Court from the historical record, we cannot fînd that better title has been
demonstrated by the Mellotts than that which has been demonstrated by MFLP. We will not
vacate our prior finding; specifically: "the division line between the two parcels is the Plessinger
Division Line and it is from the First Harris Deed that the division line must be constructed."
February 26,2014 Opinion and Order of Court , at 19.
We find Watson's testimony as to his efforts to reconstruct the Plessinger Division Line
to be credible and convincing. Watson applied the boundary retracement principles as described
above and has "walked in the steps of the original surveyor." Conversely, Henry is not a
surveyor. The Mellotts do not proffer the Shelly Survey as accurate and have offered no survey
to demonstrate their position'oon the ground" to counter that offered by MFLp.
Vy'e understand that our function as the trial court, "is to ascertain the intent of the grantor
at the time of the original subdivision." Pencil v. Buchart,55l A.2d at 305-06. We are
constrained to find that V/atson has captured, to the best of his professional ability, based on the
facts and circumstances presented by the field evidence and the record evidence, the intent of
grantors, George and Sally Hamis, who we deem to be the applicable grantors in the instant
inquiry. Accordingly, the division line between MFLP and the Mellotts in Area C shall be as
surveyed by Watson and set forth in the 'Watson Survey. See Pl. Ex. l.
JJ
II. AREASA&B
As to Areas A and B, the parties agree in theory that the "legal" boundary is/was
established by the Lake Second Survey. The parties differ on where that boundary lies on the
ground and what effect, if any, the passage of time and the acts of subsequent landowners many
have on the location of the boundary today.
A. MFLP:
In Areas A and B, MFLP urges the Court to consider, again, their theory of consentable
line, as
there were disputed, contradictory documents of record, adverse to the interest of
[the Mellotts] and/or their predecessors-in-interest, and in each instance, either
[the Mellotts] and/or their predecessors-in-interest commissioned the preparation
and recordation of the surveys which reconciled and compromised their respective
boundaries (see, for e.g., the Fisher Survey, the Best Survey, and the Best/Angle
Survey) and then recognized those boundaries (see, clem Malot's testimony
about the Mill Road Hunting club lease boundaries) and Watson used those
surveys, together with fence remnants, identified in the Fisher Survey (and on the
ground by watson) to determine the eastern boundary of MFLP Tracts (o) and
(K) where those Tracts adjoin the western boundary of Howard J. Mellott, John J.
Mellott, and the Mellott Family Trust's real estate in regards to Areas A and B.
Plaintiff s Proposed Findings of Fact and Conclusions of Law ("P1. FF/CL"),,lf o. we
previously considered and rejected this theory in our Opinion and Order entered February
26,2014, which resolved the parties' cross-motions for partial summary judgment.
MFLP is now arguing a theory of consentable line as to Areas A and B, rather than Area
C. This argument merits another look.ae
ae
In Plauchak v. Boling, the Superior Court recognized the benefits ofresolving boundary disputes through
consentable line:
As our Supreme Court recognized in 1835, [t]here is no survey of ordinary size, the lines of which
will measure exactly to the corners, or to the places where they once stood; hence, every surveyor
in tracing old surveys expects to find and does find the length of every line differing more or less
from his draft. Therefore, our courts have always favored boundaries established by consentable
line, especially where, as here, the courses and distances on the ground do not correspond to the
metes and bounds contained in the paper record.
34
The establishment of a boundary line by acquiescence for the statutory period of
twenty-one years has long been recognized in Pennsylvania.tl Two elements are
prerequisites: 1) each party must have claimed and occupied the land on his side
of the line as his own; and2) such occupation must have continued for the
statutory period of twenty-one years. [...] the doctrine functions as a rule of
repose to quiet title and discourage vexatious litigation.
[...] An examination of the decisional law demonstrates, however, that the
doctrinal roots ofacquiescence are grounded in adverse possession theory;tl
indeed, occupancy with open manifestations of ownership throughout the
statutory period will generally satisfy the traditional elements of adverse
possession.t 1 Decisions involving acquiescence are frequently distinguishable
from adverse possession cases only in that possession in the former are often
based on a mistake as to the location of property lines.
Zeglin v. Gahagen, Sl2 A.2d 558, 561-63 (Pa. 2O02)(internal citations and quotations omitted,
footnotes omitted).
As described above, the doctrine of consentable lines may be established in two different
ways: dispute and compromise or recognition and acquiescence. Sorg v. Cunningham,6ST A.2d
846,849 (Pa.Super. 1997), citing Niles v. Fall Creek Huntine Club. Inc. , 545 A.2d 926
(Pa.Super.1988)(en banc). In a dispute and compromise scenario, a party may establish that a
boundary has been agreed to after a dispute and compromise. Id. Clearly, establishing a
consentable line through dispute and compromise is not applicable to the instant matter. There is
no evidence of any compromise by the parties. There is also no evidence of any dispute prior to
the 2010 timber trespass allegation.
Proof of consentable line can also be established by recognition and acquiescence.
Under such a theory the court must find: (1) that each party has claimed the land on his side of
the line as his own; and (2) thatthis occupation has occuned for the statutory period of twenty-
653 A.2d 671,677 (Pa.Super.l995)(citations and quotations omitted). "As a result of this inconvenient reality, our
courts favor establishing boundaries by consentable lines." Id.
35
 one years. Plauchak v. Boling , 653 A.2d 671, 67 5 (Pa.Super. 1995). "Pennsylvania law is clear
that successive owners in privity to one another may tack the possessory rights of a prior owner
which were acquired through the establishment of a consentable line." Id. at 677.
The general rule is that one who claims title to property through another,
regardless of the nature of the transfer whether by the act of the parties or the act
of law, is bound by earlier acts or declarations of his predecessor and takes the
title cum onere. Under this rule all acts and declarations of the owner of land
made during the continuation of his interest tending to show the character or
extent of his possession or interest, or the location of boundaries, are competent
evidence not only against himself but also against those who claim through or
under him.
Plauchak. 6 53 A.2d ar. 67 6-77, (citations omitted).
Specific consent to the location of the line is not required. Id. at 676. "It must
nevertheless appear that for the requisite twenty-one years a line was recognized and acquiesced
in as a boundary by adjoining landowners." Id. (citations and quotations omitted).
For example, 'o[...] a boundary line may be proved by a long-standing fence without
proof of a dispute and its settlement by a compromise." Sorg v. Cunningham , 687 A.2d 846, B4g
(Pa.Super.1997).
It cannot be disputed that occupation up to a fence on each side by a party or two
parties for more than twenty-one years, each party claiming the land on his side as
his own, gives to each an incontestable right up to the fence, and equally whether
the fence is precisely on the right line or not. In such a situation the parties need
not have specifically consented to the location of the line.
Sorg, 687 A.2d at 849, quoting Dimura v. V/illiams,286 A.2d370,371 (Pa. 1972). Further, "[a]
consentable boundary line need not be a fence necessarily , and a boundary established by survey
is sufficient." Sorg. 687 A.2d at849 (citing Niles v. Fall Creek Hunting Club. Inc. ,545 A)d
926 (Pa.Super.1988) (en banc)). See also, Miles v. Pa. Coal Co. ,91 A.2d}ll (Pa.l9l4) ("It has
long been settled in Pennsylvania that a person in possession by a fence as his line for more than
21 years, establishes his right to claim title to the line thus marked.")
36
Turning to the instant matter, MFLP initiated this litigation on November 14,2012,wjth
the filing of the Complaint. The Amended Complaint, filed January 18,2013,alleges, "In early
2010 MFLP was harvesting timber within Tract (o), Track (k), Tract (a), and Tract (m)."
Amend. Comp. 1I14. "In early 2010 Defendant Trustee Ralph D. Mellott observed that MFLP
was harvesting timber and objected, claiming that some of the timber being harvested by MFLp
was located on his property based on survey markers placed on the ground in the context of
preparation of the [June 8, 1989 shelly & witter] survey." Amend. comp.
flI5.
Given the above factual scenario, it is presumed, for the purposes of beginning the
discussion, that the 2I-year time-line ends not later than March, 2010. The Timber Trespass
Report authored by Thomas O'Neal, is dated March 26,2010. See Pl. Ex. 3. Inexplicably,
however; MFLP's Proposed Findings of Fact and Conclusions of Law is silent as to whether the
2l-year recognition period has been established and, if so, how.
MFLP argues, "either [the Mellotts] andlor their predecessors-in-interest commissioned
the preparation and recordation of the surveys which reconciled and compromised their
respective boundaries (see, for e.g., the Fisher Survey, the Best Survey, and the Best/Angle
Survey) and then recognized those boundaries..." pl. FF/CL',,1TO.
The Fisher Survey was completed in October, 1989, on behalf of James and Clyde
Mellott. See Pl. Ex. 4. It was from the Fisher Survey that Watson confirmed the location of iron
rods and a railroad spike at the corners of John's and the Mellott Family Trust property to the
north.
The Best Survey was prepared for John Mellott in July, 1989. See Pl. Ex. 5. Watson also
used the Best Survey to verify the corners of John's property. The Best Survey indicates that a
fence lies along the western boundary of John's property with MFLP. Further, John's deed
37
incorporates the Best Survey which calls for MFLP's predecessor in title as an adjoiner on the
western border.
The Angle Survey was prepared for Gibson and recorded on April 30, 2001. See Pl. Ex.
12. The Angle Survey, like the Lake Second Survey, called for the iron rod in stones that both
parties agree marks the northwestem corner of Howard Mellott the younger and the noftheastern
corner of Gibson.
MFLP proffers the Mill Road Hunting Club lease boundaries as additional evidence of
the Mellotts' recognition and acquiescence of the boundary as described by Watson. According
to Clem, the Club acknowledged the border in the area defined by the Vy'atson Survey; however,
the lease was in effect from 2000 through 2008 - at least two years before the V/atson Survey
was completed. There was no additional evidence to suggest that Clem, his wife, Jana, or
MFLP's other partners or predecessors in interest treated the fence at issue (Best Survey) or the
iron rods and railroad spikes (Fisher Survey) as the boundary between the parties' respective
tracts
Given this record, we cannot find that the Mellotts recognized and acquiesced in the
fence (or the location of the railroad spikes) for the requisite 21 years. Twenty-one years prior to
March, 2010 would be March, 1989. The Best Survey was not prepared until July, 1989, John's
deed was not recorded until September, 1989, and the Fisher Survey was not completed until
October of the same year; months short of the requisite 2l-year period. Accordingly, MFLp's
claim of consentable line must fail, albeit by only a few months.
B. THE MELLOTTS:
The Mellott's ultimate conclusion of law with respect to Areas A and B is this:
38
The eastern boundary for MFLP Tract (o) and Tract (k), established by the
Thompson and Cummins Surveys, that adjoins the Parker Survey, must be used to
determine MFLP's eastern boundary and Mellott's western boundary, and the
subsequent survey of lands within the Parker Survey cannot change or move that
boundary as a matter of law.
Def. FF/CL, CLn12. Again, the Mellotts urge us to refer back to the Thompson Survey of 1784,
the Cummins Survey of 1787,s0 and the Parker Survey of 1796 to resolve this 2010 boundary
dispute. The Mellotts agree that the Lake Second Survey shows the Thompson/Cummins
Warrant boundary; however, argue that the field evidence as determined by Watson does not
match the Lake Second Survey. Simply stated: the Mellotts dispute that the fence along the
western boundary of John's property is the boundary between the parties as called for in the Lake
Second Survey.
The Mellotts agree that the northeastern corner of the Gibson property/northwestern
corner of Howard Mellott the younger's property as depicted on the Watson Survey as IRF IN
STONES is on the boundary between MFLP Tract (o) and Howard J. Mellott the younger's Tract
2. Def. FF/CL, FFI23. However, they argue that V/atson's reliance on the fence was clearly
erroneous and further argue, "'Watson's reliance on the surveys of Angle, Best and Fisher to
change the Lake Second Survey and the Thompson and Cummins Surveys, is erroneous as a
matter of law." Def. FFiCL, CLTIT6-7.
What this case comes down to is the difference between the approach of a learned
mathematician who has: undertaken a careful study of the ancient deeds and other documents,
applied mathematical principles, and used technology to reach his conclusion and an
experienced, licensed surveyor who has: undertaken a careful study of the relevant documents
(both ancient and modern), collected and analyzed fìeld evidence, apptied modem surveying
principles and techniques, and completed a comprehensive survey of all tracts and some
t0 The Cummins Survey contains a scrivener error which results in a misclosure. Def. FF/CL, FFlf3
39
adjoiners at issue in reaching his conclusions. In this case, we must find the opinion of Watson
to carry the day.
Although we have found MFLP's theory of recognition and acquiescence inapplicable, it
does not follow that we also find Watson's conclusion regarding the location of the boundary
between the parties' respective tracts to be in enor either legally or factually. To the contrary,
-
as we noted above, we find Watson's testimony to be credible and compelling.
Vy'atson explained in exacting detail the process by which he arrived at his ultimate
conclusions. Watson used the fence which borders John's property (and MFLP's eastem
boundary) - the same fence used by Barry Best in completing his survey in July, 1989 - as field
evidence relevant to his conclusion. We cannot find that he erred in doing so.
At trial, this exchange took place between Attorney Benchoff and Watson:
Q: Glenn, as you are there and I asked you previously about what you found as
you proceeded north from below and got up to John Mellott's property and you
mentioned that you found some old remnants of fencing. Can you show the Court
and maybe draw in blue where you found some old fence remnants? [$çg Pl. Ex.
1l
A: We found remnants along this portion of the line starting about right there and
going in a southwest -southwest direction the full length of the John Mellott
property.
Q: so there were fence remnants all along what you believed to be - what we
believe to be the border between MFLP and John Mellott?
A: That's right. And according to our record research the Barry Best Survey also
showed fence remnants on that same boundary.
Q: And that's actually on the Best Survey. You can see hatching delineated on
the Best Survey, the old fence remnants? [See Pl. Ex. 5l
A: So that gave us a good sense of confidence that we were at the same location
as what Bany Best was.
40
T .P . 3l2l I 19 at 64-65 . Watson noted that the Best Survey indicates that a fence lies along the
westem boundary of John's property. The Best Survey is referenced and incorporated in the
September 22, 1989 deed from James B. Mellott and Clyde E. Mellou ro John J. Mellott and his
wife, Marjorie A. Mellott. See Pl. Ex. 39. The deed and the incorporated Best Survey describe
the parcel as adjoining the land of J. Woodrow Malot (on the western boundary).
Accordingly, while the fence may not be evidence sufficient to establish a boundary
under the legal theory of consentable line by recognition and acquiescence, it is evidence on
which Vy'atson may credibly rely in compiling field evidence and completing his survey. Further,
it is evidence on which this Court may rely in establishing the boundary in Area B. Recall,
[. . . ] all acts and declarations of the owner of land made during the continuation of
his interest tending to show the character or extent of his possession or interest, or
the location of boundaries, are competent evidence not only against himself but
also against those who claim through or under him.
Jedlickav.Clemmer,450Pa.Super.647,653,677 A.2d1232,1234-35(1996),citingPlauchak,
653 A.2d671,676 (Pa.Super. 1995) and Dawson v. Coulter, 106 4.187, 188 (Pa. lglg).
As we have found the fence to be credible evidence on which Watson could rely in
completing the survey of the various tracts at issue, it therefore follows that the balance of
Watson's work in this area can be accepted by this Court as evidence of the boundary between
the parties in Areas A and B.
ilI. UNJUST ENRICHMENT
In Count II of the Amended Complaint, MFLP alleges that Defendants Ralph and Doretta
Mellott, Trustees of the Mellott Family Trust, were unjustly enriched when they retained
52089.24 from Clem Malot as payment for timber cut from the disputed areas. Amend. Comp.
n4e.
4l
"An action based on unjust enrichment is an action which sounds in quasi-contract or
contract implied in law. A quasi-contract imposes a duty, not as a result of any agreement,
whether express or implied, but in spite of the absence of an agreement, when one party receives
unjust enrichment at the expense of another." Discover Bank v. Stucka 33 A.3d 82, 8B-g9
(Pa.Super.2011) (quotation and citations omitted). To succeed on a claim of unjust enrichment,
the plaintiff must prove:
[...] benefits conferred on defendant by plaintiff, appreciation of such benefits by
defendant, and acceptance and retention ofsuch benefits under such
circumstances that it would be inequitable for defendant to retain the benefit
without payment of value. whether the doctrine applies depends on the unique
factual circumstances of each case. In determining if the doctrine applies, wè
focus not on the intention of the parties, but rather on whether the defendant has
been unjustly enriched.
'Moreover,
the most significant element of the doctrine is whether the enrichment
ofthe defendant is unjust.
Joyce v. Erie Ins. Exch.,74 A.3d 157,169 (Pa.Super. 2013)(emphasis in original). Further,
o'To
sustain a claim of unjust enrichrnent, a claimant must show that the party against whom
recovery is sought either wrongfully secured or passively received a benefit that it would be
unconscionable for her to retain." Gutteridge v. J3 Energy Grp.. Inc., 165 A.3d g0g, gll
(Pa.Super.20l7) (internal quotation marks and citations omitted). "The doctrine does not apply
simply because the defendant may have benefited as a result of the actions of the plaintiff.', Id.
At trial, Clem testified that Tom O'Neal assessed the timber that had been cut in the area
of dispute and paid Ralph two times the value. T.P.3l2lll9 at39-40. Clem explained, ,.It was
not an indication of negligence. It was between us friends, family and neighbors until we get this
straightened out it seemed the right thing to do." Id. at39. Clem acknowledged that O'Neal
who actually wrote the check to Ralph; however, the amount paid to Ralph reduced MFLp's
profit from the timbering operation. To Clem, the payment was tendered conditioned on the
42
findings of the survey. MFLP argues that Clem "caused" the sum to be paid to Ralph in good
faith. See Pl. FF/CL,1eE.
The Mellotts presented no evidence on this claim. They argue that because the $2089.24
came from O'Neal, rather than from Clem, the unjust enrichment claim must fail.
Neither side presented the testimony of Thomas O'Neal. O'Neal's correspondence to
Ralph appears in the record as Exhibit 3 to Plaintiffls Amended Complaint. Said correspondence
can be summarized as acknowledging O'Neal Forestry's mistake in marking and cutting timber
on Ralph's land, offering Ralph an apology, and including payment consistent with the value of
the timber determined in the Timber Trespass Report which, presumably, accompanied the letter
and the check. See Amended Complaint, Ex. 3.
To prove unjust enrichment, MFLP must show benefit conferred on Ralph and Doretta,
Trustees of the Mellott Family Trust, by MFLP; appreciation of the benefits by Ralph and
Doretta; and acceptance and retention of the benefit "rmder such circumstances that it would be
inequitable for Ralph and Doretta to retain the benefit without payment of value. Lackner v.
Glosser, 892 A.2d21,34 (Pa.Super.2006). The applicability of the unjust enrichment doctrine
depends on the unique circumstances of the case. MetroClub Condo. Ass'n v. 201-59 N. Eighth
sr. . L.P.. 47 A.3d 137, 148 (Pa.Super.2012).
To be sure, Ralph and Doretta received a payment of $2089.24 in March, 2010, from
O'Neal Forestry for twice the value of the timber O'Neal believed he enoneously harvested on
Ralph's land. The evidence presented at trial leads this Court to conclude that at the time Ralph
received the payment, Ralph believed he was being paid for timber harvested from his land.
There is no evidence that the payment came from Clem. The correspondence from O'Neal to
Ralph includes no conditional language which requires repayment to O'Neal (or Clem) in the
43
event some future survey (or court) finds the timber belonged to Clem. There is no evidence of
any agreement for repayment depending on the outcome of the survey.
Rather, the evidence of record leads us to conclude O'Neal freely paid Ralph to resolve a
potential dispute. It is of no consequence that we have ultimately found the disputed area to be
the property of MFLP. O'Neal chose to settle his potential liability with Ralph rather than
proceed with litigation. This is not unjust enrichment.
Therefore, based on the record evidence, O'Neal paid Ralph 52089.24 because in 2010
O'Neal believed that he had trespassed on Ralph's land and cut his timber. Vy'e now know that
the timber actually belonged to Clem. \iVe also know that Clem believed the payment to Ralph
was conditional on the result of the survey. On what Clem based his belief, we do not know.
Because the benefit to Ralph was conveyed by O'Neal at a time when it appeared that
Ralph was legally entitled to receive it, and because the payment was not conditioned on Ralph
repaying the money if/when a survey confirmed the timber was actually harvested from Clem's
land, we cannot find that MFLP has sustained a claim for unjust enrichment.
In addition, while Ralph received a benefit of $2089.24 from O'Neal, the record is clear
that sum represented twice the value of the timber. Clem claims the entire amount; however, had
O'Neal paid Clem the value of the timber harvested from the disputed area, Clem would have
received only $1044.62,half ofthe amount paid by O'Neal to Ralph. O'Neal is not a party to
this litigation and has made no claim to this Court for $1044.62. Anaward of $2089.24 to Clem
would also smack of unjust enrichment, would it not?
44
IV. TIMBER TREPASS
Based on our findings above, we need not discuss the Mellott's claim for timber trespass
further
CONCLUSION
In sum, we have found Watson's testimony credible. V/e have found Watson's work to
be legally and factually compelling. MFLP has demonstrated primafacie evidence of title in this
quiet title action with respect to the areas of dispute, Areas A, B, and C. Mellotts have not
demonstrated better title. In fact, MFLP has demonstrated good title by the requisite fair
preponderance of the evidence. Accordingly, on Count I
- Quiet Title, we find for MFLp.
On Count II - Unjust Enrichment, we find for the Mellotts, as MFLP has not
demonstrated, under the unique circumstances of this case, that the $2089.24 payment from
O'Neal Forestry to Ralph was unjust.
On the Mellott's Counterclaim for Timber Trespass, we find for MFLP, as we have found
MFLP to hold title to the areas of dispute.
An Order follows.
45
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
OF PENNSYLVANIA.- FULTON COUNTY BRANCH
Malot Family Limited Partnership, Civil Action - Law
Plaintiff
No.20l2-445
Howard J. Mellott and Karla J. Mellott,
Ralph D. Mellott and Doretta K. Mellott
Trustees of the Mellott Family T*rt uni
John J. Mellott and Marjorie A. Mellott,
Defendants : Honorable Angela R. Krom, J
ORDER OF COURT
S
AND NOw, tni, l5 a^v æ ÑN tnW , zltg,after trial in this matrer and
upon consideration of the proposed Findings of Fact and Conclusions of Law submitted by the
parties, the record, and the applicable law;
IT IS HEREBY ORDERED:
1. On Count I - Quiet Title, we f,rnd for MFLP and direct that the boundary in disputed
Areas A, B, and C shall be as depicted on the 2010 Watson Survey
2. On Count II - Unjust Enrichment, we find for the Mellotts.
3. On the Counterclaim for Timber Trespass, we find for MFLp.
Pursuant to Pa.R.C.P. Rule 236, the Prothonotary shall give written notice of the entry of
this Order, including a copy of this Order, to each party, ønd shall note in the docket the giving
of such notice and the time and manner thereof,
By the Court,
ì,'.,l;' . ir ;'i..:j
Angela R. Krom, J
Distribution:
Andrew J. Benchoff, Esq., Counsel for Plaintiff
J. McDowell Sharpe, Esq., Counsel for Defendants
Alexander C. Sharpe, Esq., Counsel for Defendants
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